Thompson v. Dewey's South Royalton, Inc.

Annotate this Case
Thompson v. Dewey's South Royalton, Inc.  (97-273); 169 Vt. 274; 733 A.2d 65

[Filed 21-May-1999]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 97-273


Ken Thompson, Annette Potwin and	       Supreme Court
Ashley and Tessa Thompson
                                               On Appeal from
     v.		                               Orange Superior Court

Dewey's South Royalton, Inc., Erlina 	       May Term, 1998
Gay Farrington, Merle Howe, Mark Nemeth,
So. Royalton House, Inc., Michael Brown
and Thomas Powers


David T. Suntag, J.

       James A. Dumont of Keiner & Dumont P.C., Middlebury, for
  Plaintiff-Appellant Thompson.

       Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Brannen,
  P.C., White River Junction, for Plaintiff-Appellant Potwin.

       David H. Bradley and David R. Putnam of Stebbins, Bradley, Wood &
  Harvey, P.A. Hanover, New Hampshire, for Defendant-Appellees Dewey's South
  Royalton, Inc., Farrington, Howe and Nemeth.  

       Robert G. Cain and John G. Beiswenger of Paul, Frank & Collins, Inc.,
  Burlington, for Defendants-Appellees South Royalton House, Inc. and Brown.

       J. Christopher Callahan and Tracy Kelly of Richards and Brady, P.C.,
  Springfield, for Defendant-Appellee Powers.


PRESENT:  Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and 
          Corsones, D.J., Specially Assigned


       MORSE, J.  Plaintiffs instituted this action under the Dram Shop Act
  (DSA), 7 V.S.A.  § 501, against two licensed vendors of alcoholic
  beverages, seeking damages resulting from an  intoxicated person's death. 
  The trial court granted defendants' motion to dismiss, see V.R.C.P. 
  12(b)(6), ruling that plaintiffs, who were third persons injured as a
  consequence of an imbiber's  death, did not have a cause of action under
  the DSA.  We reverse.

       The salient facts pled in the complaint are as follows.  See Amiot v.
  Ames, 166 Vt. 288,  291, 693 A.2d 675, 677 (1997) (allegations of nonmoving
  party must be accepted as true in 

 

  reviewing motion to dismiss).  Defendants are two South Royalton bars --
  Dewey's South  Royalton and South Royalton House -- their owners, and some
  of their employees.(FN1)  In June  1995, after spending the evening
  drinking excessively at both of defendants' bars, Mickey Lee  Thompson
  (decedent) was injured in a car accident.  He died three weeks later from
  injuries  sustained in the accident.  Plaintiffs filed claims under the DSA
  to recover for the injuries they  suffered to their "person [and] means of
  support" as a result of decedent's death "in consequence  of [his]
  intoxication."  7 V.S.A. § 501(a).  

       Plaintiffs include Annette Potwin, Ashley Thompson, Tessa Thompson,
  and Ken  Thompson.  Decedent lived with his partner Annette Potwin (the two
  were not married), and her  daughter, Ashley, for over seven years, until
  the time of his death.  Although Ashley was not  decedent's biological
  daughter, she regarded decedent as her father and used his last name as her 
  own.  Decedent provided financial support to both Annette and Ashley. 
  Tessa Thompson was  born to decedent and Annette Potwin in February 1994. 
  Decedent provided physical, moral, and  intellectual support and training
  for both Tessa and Ashley.  Ken Thompson is decedent's father.  Father and
  son planned to commence a woodworking business together later in the summer
  of  1995.

       All of the plaintiffs sought damages for loss of decedent's
  companionship and loss of  means of support.  Annette Potwin and her two
  children also sought damages for the loss of  physical, moral, and
  intellectual training.  In addition to the instant action, Annette Potwin,
  as the  administrator of decedent's estate, filed a common law negligence
  claim against the same  defendants under the Wrongful Death Act.  See 14
  V.S.A. §§ 1491-1492.

       In granting defendants' motion to dismiss plaintiffs' claims, the
  court concluded, "Just

 

  as [decedent] had no cause of action under the DSA, the DSA likewise does
  not provide his  relatives a remedy for their derivative claim." (Emphasis
  added).  This appeal followed.

                                     I.

       The issues on appeal concern questions of law, and thus our "review is
  nondeferential and  plenary."  Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995).  First, we address  whether the DSA provides an
  independent and direct right of recovery to third persons injured as  a
  consequence of an imbiber's death.  Because we find that it does, we next
  address whether  plaintiffs here are within the class of claimants entitled
  to recover under the DSA.  Finally, we  consider the range of damages
  available to third persons injured as a consequence of an imbiber's  death.

                                     A.

       Relying on a plain meaning interpretation of the DSA, plaintiffs
  allege that the DSA  provides them a direct cause of action against
  defendants.   The DSA states in pertinent part:

     A spouse, child, guardian, employer or other person who is injured 
     in person, property or means of support by an intoxicated person, 
     or in consequence of the intoxication of any person, shall have a 
     right of action in his or her own name, jointly or severally, against 
     any person or persons who have caused in whole or in part such 
     intoxication by selling or furnishing intoxicating liquor:

     .  .  .  .  to a person apparently under the influence of 
     intoxicating liquor; [or]

     .  .  .  .  to a person whom it would be reasonable to expect would 
     be under the influence of intoxicating liquor as a result of the 
     amount of liquor served by the defendant to that person.

  7 V.S.A. § 501(a).  Plaintiffs contend that they have been injured "in
  person [and] means of  support . . . in consequence of the intoxication" of
  decedent.  

       Defendants, on the other hand, contend that only third persons injured
  by an intoxicated  person may recover under the DSA.  Their position is
  predicated on this Court's holding in  Langle v. Kurkul, 146 Vt. 513,
  515-16, 510 A.2d 1301, 1303 (1986), where we held that an  intoxicated
  person who caused injury to himself could not recover damages against the
  alcohol 

 

  supplier under the DSA.  In reaching this result, we further explained that
  "the [DSA] gives a  cause of action only to third persons who are injured
  by an intoxicated person."  Id. at 516, 510 A.2d  at 1303.  Defendants
  conclude, therefore, that because plaintiffs here were not injured by 
  Mickey Thompson, the intoxicated person, they are precluded from recovering
  under the DSA.  In addition, they argue that plaintiffs' cause of action is
  derivative of decedent's, and because the  decedent is barred from
  recovering under the DSA, plaintiffs also are precluded from recovering.

       We find, however, that defendants' argument does not square with the
  plain meaning of  the statute or with precedent.  The statute itself has
  two provisions, each providing a separate  ground for relief.  First,
  persons who are injured "by an intoxicated person" have a right of  action. 
  7 V.S.A. § 501(a).  Second, persons who are injured "in consequence of the
  intoxication  of any person" have a cause of action.  Id.  Plaintiffs in
  this case rest their claims on the latter  provision; Langle concerned our
  interpretation of the former and thus is not controlling here. 

       In recent years, this Court has not had occasion to address head-on
  whether third parties  related to an imbiber have a direct cause of action
  for their injuries sustained "in consequence of"  the imbiber's death.  In
  construing the same language in an earlier version of the statute, however, 
  we held that a wife could recover against a liquor vendor for the loss of
  her means of support  where her husband died as a consequence of his
  intoxication.  See Healey v. Cady, 104 Vt. 463,  466-67, 161 A. 151, 152
  (1932) (interpreting 1917 G.L. § 6579).(FN2)  This Court recognized  in
  Healy the two provisions of the statute -- "one giving a right of action
  for injury 

 

  caused by an intoxicated person, and . . . one giving the right of action
  for injury caused in  consequence of the intoxication of any person" -- and
  concluded that wife's claim (like the claims  in the instant case) stood on
  the latter provision.  Id. at 468, 161 A.  at 152. 

       Healy reflects a widely accepted policy that the relatives of an
  injured or deceased imbiber  may recover under dram shop laws because they,
  unlike the imbiber, are considered innocent third  parties who did nothing
  to contribute to the injury.  See, e.g., Valicenti v. Valenze, 499 N.E.2d 870, 871 (N.Y. 1986) (husband and minor children of intoxicated decedent
  had cause of action  for loss of "means of support" under dram shop act);
  Matalavage v. Sadler, 432 N.Y.S.2d 103,  107 (N.Y. App. Div. 1980) (minor
  child of intoxicated person who was killed by reason of his  intoxication
  has cause of action under dram shop act); cf. Hannah v. Chmielewski, Inc.,
  323 N.W.2d 781, 782-83 (Minn. 1982) (wife of police officer injured by
  intoxicated person can  recover under dram shop act even when "Fireman's
  Rule" barred her husband from maintaining  such action on his own behalf). 

       Defendants, on the other hand, contend that a more recent case
  suggests that the relatives  of an innocent person killed by an imbiber, as
  well as the relatives of an intoxicated decedent, are  not entitled to
  recover under the DSA.  In Clymer v. Webster, 156 Vt. 614, 620, 596 A.2d 905,  909 (1991), we noted that, aside from minor medical and funeral
  bills, the parents of an adult  child killed by a drunk driver were "not
  themselves . . . injured `in person, property or means  of support' within
  the meaning of the DSA."  The focus of that case, however, concerned the 
  remedies available when the decedent herself was injured "in person,"
  unlike the decedent in  Langle, and therefore would have been entitled to
  maintain an action under the DSA had she  survived.  See Clymer, 156 Vt. at
  620, 596 A.2d  at 909.  We concluded that the parents and  decedent's estate
  were entitled to recover wrongful death damages.  Defendants infer from
  Clymer  that the relatives of a person killed by an imbiber have only a
  derivative cause of action.

       Defendants' interpretation of Clymer does not reflect the true context
  of the issues on  appeal in that case.  A more accurate reading of Clymer
  reveals that we simply did not address 

 

  whether the parents had a direct cause of action under the DSA.  Given the
  focus of our opinion,  then, the more reasonable inference to be drawn from
  Clymer is that the parents were not injured  "in person, property or means
  of support" as a result of their eighteen-year-old daughter's death.

       Accordingly, we find that the plain language of the statute and our
  previous decisions  interpreting an earlier but similar version of the
  statute support our holding that the relatives of  a deceased imbiber have
  an independent and direct right of recovery.

                                     B.

       Next, we address whether decedent's father, Ken Thompson, decedent's
  unmarried partner  Annette Potwin, and her child Ashley Thompson, are
  within the potential class of claimants  enumerated in the DSA.  The Act
  provides that "[a] spouse, child, guardian, employer or other  person who
  is injured . . . shall have a right of action."  7 V.S.A. § 501(a).  It is
  undisputed that  Tessa Thompson, as decedent's biological child, is within
  that class of protected claimants.(FN3)  Plaintiffs (other than Tessa)
  assert that they are also entitled to recover for "loss of means of 
  support" under the broad statutory catch-all of "other persons."  They rely
  on several sister-state  decisions construing identical dram shop
  provisions to mean any other person injured by the  intoxication of
  another.  See Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 857 (Minn.
  1998)  (holding that injured party's fiancée and her daughter were included
  within broad scope of "other  person" under state's dram shop act);
  Rodriguez v. Solar of Mich., Inc., 478 N.W.2d 914, 921  (Mich. Ct. App.
  1991) (step-children and step-grandchildren were "other persons" entitled
  to seek  recovery under state dram shop act).

       Defendants, in response, contend the the DSA limits the class of
  persons entitled to  recover to those legally entitled to financial support
  from the injured person.  Defendants rely 

 

  on Good v. Towns, 56 Vt. 410 (1883), which construed an earlier version of
  the DSA that  extended recovery to any "person who is in any manner
  dependent" on the injured party.  The  Good court held that "dependant"
  meant legally dependant, and therefore that the plaintiff and her 
  illegitimate daughter -- who had lived with the injured party as his wife
  and daughter but could  not prove a legal marriage -- were ineligible to
  recover under the act.  Id. at 415-16.  	

       Since Good, amendments to the DSA have modified the language from any
  person "who  is in any manner dependent" on the injured party to "spouse,
  child, guardian, employer or other  person."  Defendants note that in
  Langle we applied the rule of ejusdem generis to this portion  of the
  statute, holding that the general term ("other person") should be construed
  to include only  "those terms similar in nature to the enumerated terms." 
  146 Vt. at 515, 510 A.2d  at 1303; see  also Vermont Baptist Convention v.
  Burlington Zoning Bd., 159 Vt. 28, 30, 613 A.2d 710, 711  (1992) (when
  construing enactment with series of terms, we apply rule of ejusdem generis
  to  include only those things similar in character to those specifically
  defined).  As we stated in  Langle: "Since those persons listed in the Dram
  Shop Act stand in some special relation to the  intoxicated person, the use
  of the term `other person' in the Act must mean someone who is  similarly
  situated."  146 Vt. at 515-16, 510 A.2d  at 103.

       Although Langle did not explore the precise nature of that "special
  relation," defendants  argue that the common denominator among the
  enumerated terms is the existence of a relation of  legal dependence upon
  the injured party.  Thus, although the express language of "dependence"  on
  which Good relied has been removed from the statute, defendants argue that
  the effect remains  the same.  We note that there is authority for the
  argument that some legally recognized right of  support from the injured
  party limits the general term "other person."  See Ford v. Wagner, 395 N.W.2d 72, 74 (Mich. Ct. App. 1986) (holding that cohabitant not married to
  injured party lacked  standing under state dram shop act because he lacked
  "legal relationship to the injured party"). 
 
       In this case, however, we need not definitively determine whether a
  legislatively 

 

  recognized right of support constitutes a prerequisite to recovery under
  the Act.  For even  assuming, without deciding, that the more stringent
  standard governs, we conclude that all of the  plaintiffs here satisfy the
  standard.  With respect to decedent's father, the statute expressly 
  includes "guardians" among the list of persons entitled to recover.  A
  guardian is an individual  charged with the legal duty of taking care of
  the person and property of another who, because of  age or mental status,
  is incapable of doing so.  See 14 V.S.A. §§ 2645, 3060.  Parents are the 
  "joint guardians" of their children.  See 14 V.S.A. § 2641.  Furthermore,
  although a parent or  guardian does not have a civil right to the financial
  support of a ward or child, the law provides  that a child with sufficient
  means who refuses to support a destitute parent may be subject to 
  imprisonment and monetary penalties for the support of the needy parent. 
  See 15 V.S.A. § 202.  This reflects a legislative judgment that parents
  have some legal right to the support of an adult  child, and threfore meet
  the more narrow standard for recovery under the DSA.  Accordingly,  we
  conclude that Ken Thompson, decedent's father, had standing to bring suit
  in this case.  Of  course, as explained more fully in the section which
  follows, he must still prove at trial that he  was actually deprived of
  some "means of support" as a consequence of his son's death.  

       We conclude, similarly, that Annette Potwin, decedent's unmarried
  partner, and her  daughter Ashley, fall within the more narrow definition
  of persons covered by the act.  As noted,  decedent lived with both Annette
  and Ashley for over seven years, until his death, and provided  both
  financial and emotional support.  Under 15 V.S.A. § 294, the mother of
  minor children  residing within the same household as a man unrelated to
  her and not otherwise liable to provide  financial support may,
  nevertheless, seek support as though they were married.  Whether this 
  statute confers a legally enforceable right or not, it plainly embodies a
  legislative judgment that  an individual in decedent's circumstances had an
  obligation to support plaintiffs.  See also 15  V.S.A. § 301 (setting forth
  policy of state that legal obligations of parents be established for 
  benefit of all children).

 

       Thus, we are satisfied that plaintiffs Annette Potwin and Ashley
  Thompson meet the more  narrow standard for recovery.  Accordingly, we need
  not decide whether the DSA broadly extends  to "other persons" who have no
  legally recognized right of support.  

                                     C.

       Finally, we address the range of damages recoverable by third persons
  under the  DSA.(FN4)  Plaintiffs contend that they are entitled to recover
  under the DSA not only for the  financial support they lost in consequence
  of imbiber's death, but also for his lost comfort,  companionship and
  guidance.  Defendants assert that plaintiffs' loss of companionship and
  loss  of parental guidance claims are not recoverable because they are not
  available in a direct claim  under the DSA.  They assert that the range of
  remedies available under the DSA are limited and  do not include the full
  range of damages available under the Wrongful Death Act (WDA).  See  14
  V.S.A. §§ 1491-1492.  

       We agree with defendants and conclude that third persons injured in
  consequence of the  death or injury of an imbiber are only entitled to
  recover for their loss of means of support, if any,  and not for loss of
  companionship and loss of parental training and guidance.  This
  interpretation  is consistent with the legislative history and purpose of
  the statute.

       Vermont's original Dram shop Act, 1880 R.L. tit. 30, ch. 169, § 3602,
  was enacted in  1874.  It manifests the Legislature's intention to
  distinguish between the categories of statutory  claimants and the types of
  damages they are entitled to recover.  The first category of plaintiffs 
  was comprised of those persons who are directly injured in person or
  property by an intoxicated  person:

    When a person, by reason of intoxication, commits or causes an injury 
    upon the person or property of another, a person who by himself, clerk, or
    servant, unlawfully sold or furnished any part of the liquor causing such 
    intoxication, shall be liable to the party injured for the damage 

 

    occasioned by the injury so done.

  Id. (emphasis added). The second category of plaintiffs encompassed third
  persons injured in  means of support as a consequence of the death or
  disability of either an innocent or an intoxicated  person:

       In case of the death or disability of a person, either from such
  injury or in  consequence of intoxication from the use of liquors so
  unlawfully  furnished, a person who is in any manner dependent on such
  injured person  for means of support, or a person on whom such injured
  person is  dependent, may recover from the person unlawfully selling or
  furnishing  any such liquor the damage or loss sustained in consequence of
  such injury. Id.	

       Like other early dram shop laws, Vermont's original act reveals an
  attempt "to correct the  evils resulting from intemperate indulgence in
  intoxicating liquors, such as impoverishment of  families, injuries to
  others, and the creation of public burdens."  Matalavage, 432 N.Y.S.2d  at 
  106 (citing Joyce, The Law Relative to Intoxicating Liquor 476 (1910)). 
  "One major purpose of  this type of statute was to protect the wife and
  children of an intoxicated person when they were  deprived of their means
  of support as a result of his intoxication."  Id. (citing Joyce, supra, at 
  476).  In other words, the goal of such legislation concerned economic
  compensation and the  preservation of financial stability within the
  families of a deceased imbiber.  The laws did not  afford a remedy for loss
  of companionship and parental guidance.

       The Dram Shop Act was amended in 1902 to resemble more closely the
  version currently  in effect.(FN5)  However, we cannot conclude from this
  subsequent enactment that the Legislature  intended to expand the scope of
  damages recoverable by third persons against tavern keepers.   Had the
  Legislature intended to broaden the damages recoverable under dram shop
  actions, it 

 

  could have included the phrase "pecuniary injuries" in the statute.  See,
  e.g., Lefto v.  Hoggsbreath Enters., Inc., 567 N.W.2d 746, 750 (Minn. Ct.
  App. 1997), aff'd, 581 N.W.2d 855  (Minn. 1998) (interpreting Minn. Stat. §
  340 A. 801, subd. 1 (1992), which permits a cause of  action to "other
  person[s] injured in person, property, or means of support, or who incur[]
  other  pecuniary loss," as allowing recovery for loss of aid, advice,
  comfort, and protection).

       For example, Vermont's WDA permits damages for "pecuniary injuries,"
  14 V.S.A. §  1492(b), which this Court has held does not limit recovery to
  purely economic losses.  See Mobbs  v. Central Vt. Ry., 150 Vt. 311, 316,
  553 A.2d 1092, 1095 (1988) ("[t]he term [pecuniary  injuries] has been held
  to contemplate compensation for lost intellectual, moral and physical 
  training, or the loss of care, nurture and protection.").  

       We conclude that it would be an impermissible judicial enlargement of
  an existing cause  of action if we construed the DSA to encompass
  "pecuniary injuries."  See Langle, 146 Vt. at  520, 510 A.2d  at 130506
  ("Our Court should not recognize a new cause of action or enlarge an 
  existing one without first determining whether there is a compelling public
  policy reason for the  change.").  We believe that this construction of the
  DSA is supported by public policy and  precedent.

       Accordingly, we find that claimants here are entitled only to loss of
  means of support, and  that this is a matter to be determined by the
  factfinder at trial.  See Valicenti, 499 N.E.2d  at 871  (holding that
  husband and minor children of intoxicated decedent "are entitled to have
  the jury  weigh all the direct and inferential evidence relating to their
  loss of `means of support'").


       Reversed and remanded.

FOR THE COURT:



                                                      
Associate Justice

------------------------------------------------------------------------------
                                  Footnotes

FN1.  Pursuant to V.R.C.P 41(a)(1)(ii), plaintiff Annette Potwin,
  individually and in her  capacity as guardian of the persons and property
  of Ashley and Tessa Thompson, and in her  capacity as administratrix of the
  estate of Mickey Lee Thompson, stipulated to the dismissal  with prejudice
  of all claims against defendant Thomas Powers, owner of the property at
  which  Dewey's is located.  Plaintiff Ken Thompson did not join this
  stipulation of partial dismissal.

FN2.  1917 G.L. § 6579, the dram shop act in effect at that time, provided:

     A husband, wife, child, guardian, employer or other person who 
     is injured in person, property or means of support by an 
     intoxicated person, or in consequence of the intoxication of any 
     person, shall have a right of action in his or her own name, 
     jointly or severally, against a person or persons, who, by selling 
     or furnishing intoxicating liquor, have caused in whole or in part 
     such intoxication.


FN3.  Defendants argued that none of the plaintiffs have a direct
  cause of action under the  DSA; however, they conceded that if this Court
  found otherwise, as we have done, then  decedent's biological daughter is a
  potential claimant because decedent had a legal duty to  support her.

FN4.  The scope of damages available to plaintiffs was not decided by
  the court below and was  not a subject of the motion to dismiss; however,
  the issue is bound to arise, and because  plaintiffs and defendants
  addressed this issue on appeal, we decide it.

FN5.  1902, No. 90, § 84, provided in pertinent part:

  A husband, wife, child, parent, guardian, employer or other person who
  is  injured in person, property or means of support by an intoxicated
  person, or in  consequence of the intoxication, habitual or otherwise, of
  any person, shall have  a right of action in his or her own name.

---------------------------------------------------------------------------
                                 Dissenting

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-273



Ken Thompson, Annette Potwin and	       Supreme Court
Ashley and Tessa Thompson
                                               On Appeal from
     v.		                               Orange Superior Court

Dewey's South Royalton, Inc., Erlina 	       May Term, 1998
Gay Farrington, Merle Howe, Mark Nemeth,
So. Royalton House, Inc., Michael Brown
and Thomas Powers


David T. Suntag, J.

       James A. Dumont of Keiner & Dumont P.C., Middlebury, for
  Plaintiff-Appellant Thompson.

       Michael F. Hanley and Barney L. Brannen of Plante, Hanley & Brannen,
  P.C., White River Junction, for Plaintiff-Appellant Potwin.

       David H. Bradley and David R. Putnam of Stebbins, Bradley, Wood &
  Harvey, P.A. Hanover, New Hampshire, for Defendant-Appellees Dewey's South
  Royalton, Inc., Farrington, Howe and Nemeth.  

       Robert G. Cain and John G. Beiswenger of Paul, Frank & Collins, Inc.,
  Burlington, for Defendants-Appellees South Royalton House, Inc. and Brown.

       J. Christopher Callahan and Tracy Kelly of Richards and Brady, P.C.,
  Springfield, for Defendant-Appellee Powers.


PRESENT:  Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and
          Corsones, D.J., Specially  Assigned



       AMESTOY, C.J., dissenting.   Because plaintiffs Ken Thompson, Annette
  Potwin, and  Ashley Thompson purportedly satisfy the "more rigorous"
  standard urged by defendants, the 

 

  majority declines to decide whether a legal relation of financial
  dependence is necessary to sue for  loss of support under the Dram Shop Act
  (DSA), 7 V.S.A. § 501.  I am not persuaded that  plaintiffs here satisfied
  this standard.  Indeed, there is so little support for a finding of legal 
  dependence in this case that it is difficult to conceive of any case where
  the necessary statutory  predicate, however attenuated, could not be found. 
  Accordingly, the warning sounded by this  Court more than a century ago, on
  facts strikingly similar to the case at bar, becomes relevant  once again:
  "There would seem to be no stopping-place short of including all possible
  cases of  actual dependency, whatever the relation of the parties, and
  notwithstanding the absence of even  a moral obligation to support."  Good
  v. Towns, 56 Vt. 410, 415 (1883).  So broad an expansion  of the benefitted
  class under the DSA ought to be left to the governmental branch principally 
  responsible for its enactment and development, the Legislature.  See Clymer
  v. Webster, 156 Vt.  614, 619, 596 A.2d 905, 908 (1991) (Legislature
  enacted DSA to create cause of action where  none had previously been
  available under common law).  Therefore, I respectfully dissent.

       The operative language in the DSA provides: "A spouse, child,
  guardian, employer or  other person who is injured in person, property or
  means of support by an intoxicated person, or  in consequence of the
  intoxication of any person, shall have a right of action."  7 V.S.A. §
  501(a).  In Langle v. Kurkul, 146 Vt. 513, 515-16, 510 A.2d 1301, 1302-03
  (1986), this Court concluded  that the general term "other persons" must be
  interpreted with reference to the specific list of  persons that precedes
  it, i.e., "spouse, child, guardian, employer."  We held that the term
  "other  person" includes only those "similar in nature" to the persons
  specifically listed.  See Vermont  Baptist Convention v. Burlington Zoning
  Bd., 159 Vt. 28, 30, 613 A.2d 710, 711

 

  (1992) (under principle of ejusdem generis, general term must be construed
  to include only terms  similar in nature to enumerated terms).  As we
  explained: "Since those persons listed in the Dram  Shop Act stand in some
  special relation to the intoxicated person, the use of the term `other 
  person' must mean someone who is similarly situated."  Langle, 146 Vt. at
  515-16, 613 A.2d  at  1303 (emphasis added).

       In light of the Court's holding in Langle, I cannot agree with the
  majority that the meaning  of "other person" remains an open question to be
  reserved for another day.  Although Langle did  not explore the precise
  nature of the requisite "special relation" to which it referred, it did, at
  a  minimum, foreclose the possibility that "other person" means any other
  person who can  demonstrate a loss of support.  While other state courts
  have, to be sure, construed their  respective dram shop acts in this
  open-ended fashion, see, e.g., Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 857 (Minn. 1998), this Court, at least, is on record as favoring a
  more limited  construction.

       The actual meaning of the "special relation" referred to in Langle may
  be traced to the  statutory precursor of the current DSA, which this Court
  definitively construed in Good.  The  version of the DSA at issue in that
  case provided, in case of the death or injury of a person in  consequence
  of intoxication, a cause of action for any "person who is in any manner
  dependent  on such injured person for means of support, or a person on whom
  such injured person is  dependent."   Good, 56 Vt. at 413 n.* (emphasis
  added).  The question in Good, as here, was  whether a woman and her child
  who had lived with but were not legally related to the injured  person
  could recover under the DSA.  

       The answer provided in Good was direct, clear, and compelling.  "[W]e
  think it should 

 

  be construed to mean a legal dependency only."  Id. at 415.  In so holding,
  the Court noted that  the alternative of allowing recovery to any person
  "in any manner dependent" upon the injured  party could encompass a
  virtually unlimitable class.  Id.  Thus, the Court declined to read so 
  "latitudinarian a construction" into the statute.  Id.    

       Although the language of the DSA has since evolved into its current
  form, there is no  evidence that the meaning ascribed to the statute in
  Good has changed.  All of the persons  currently enumerated in the statute
  enjoy an historically recognized legal relationship with the  injured party
  involving a level of dependence that would be directly impaired as a result
  of the  improper sale or furnishing of intoxicating liquor.  See 15 V.S.A.
  §§ 202, 291 (duty of married  persons to support spouse); 15 V.S.A. §§ 202,
  293, 294, 301 (duty of parents and stepparents to  support minor child); 14
  V.S.A. § 2653 (guardian's duty of care and maintenance of minor); see  also
  Ford v. Wagner, 395 N.W.2d 72, 74 (Mich. Ct. App. 1986) (holding that
  "other person"  under state dram shop act is limited to persons who, like
  those specifically listed, have legal  relationship with injured person). 
  Although not a familial bond, the employer-employee  relationship has
  similarly given rise to historically unique, reciprocal benefits and
  obligations.  See Lefto, 581 N.W.2d  at 858 n.1 (Stringer, J., dissenting). 

       The majority's attempt to pigeon-hole the individual plaintiffs here
  (with the exception of  the decedent's biological daughter, Tessa) into the
  class of legal dependents is unpersuasive.  The  law imposes no civil
  obligation upon an adult child to support a parent, and 15 V.S.A. § 202 
  imposes criminal penalties for non-support only in the limited
  circumstances where the parent is  destitute and unable to support himself
  or herself.  Plaintiff Ken Thompson, decedent's father, has  not shown that
  he falls within this narrow exception.  Accordingly, I would not 

 

  accord him standing under the Act.  Similarly, there is no general legal
  obligation so support an  unmarried cohabitant or the children of an
  unmarried cohabitant.  Cf. 15 V.S.A. §§ 293, 296  (duty of stepparents to
  support stepchild).  The "man in the house" statute on which the majority 
  relies, 15 V.S.A. § 294, has never been held to create a legal duty of
  support for an unmarried  cohabitant or that person's child.  Thus, it
  falls well sort of the legal-dependency standard  necessary for recovery
  under the DSA.  

       Although the majority purports to leave for another day the question
  of whether the DSA  broadly extends to "other persons" who have no legally
  recognized right of support, its holding  this day provides a troublesome
  answer.  By significantly dimming the bright line of legal  dependency, the
  predictability essential to orderly application of the DSA is eroded. 
  Furthermore,  far from benefitting the limited class of financial
  dependents for whom the statute was clearly  intended, the Court's
  ambiguous expansion of claimants may dilute the potential judgment pool, 
  contrary to the interests of those the Legislature deemed most severely in
  need.

       Absent a clear legislative mandate expanding the definition of "other
  persons" entitled to  a cause of action under the DSA, I would --
  consistent with the precedent of this Court -- limit  the class of persons
  entitled to recover under the DSA for loss of means of support to those who 
  were legally dependent on the injured party.  The plaintiffs Ken Thompson,
  Annette Potwin, and  Ashley Thompson were not legally dependent on the
  decedent.  Therefore, I would affirm the  judgment granting defendants'
  motion to dismiss.   


_______________________________________
Chief Justice




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